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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
Infinity Radio Operations, Inc. ) File No. EB-02-IH-0624-GC
) NAL/Acct. No. 200332080020
Licensee of Station WBLK(FM), ) FRN 0004036711
Buffalo, New York ) Facility ID # 71215
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 1, 2003 Released: August 5, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Infinity Radio Operations, Inc.
(``Infinity'') has apparently violated Section 73.1206 of the
Commission's rules1 by broadcasting a telephone conversation
without first informing the party to the conversation of its
intention to do so. Based on our review of the facts and
circumstances in this case, we conclude that Infinity is
apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000).
II. BACKGROUND
2. Brenda L. Tanner, of Buffalo, New York, filed a
complaint alleging that on June 26, 2002, at approximately 9:30
p.m., on air personality Shae Moore of WBLK(FM), Buffalo, New
York, broadcast a telephone conversation between Ms. Moore and
Ms. Tanner without the latter's knowledge. At the time, Ms.
Tanner was at work as a telephone customer service representative
for Adelphia Communications, Inc., a cable television company in
the process of Chapter 11 reorganization. According to Ms.
Tanner, Ms. Moore asked several questions about the future of the
firm, the job security of its employees, and the possibility of
non-payment of bills or cable theft.
3. In response to a Commission letter of inquiry,2
Infinity, the licensee of WBLK(FM), admits that it did broadcast
the conversation a single time at approximately 9:00 p.m. as
alleged in the complaint, and that it did not inform Ms. Tanner
of its intention to do so.3 Infinity further states that the
incident is inconsistent with its written policy in this respect.
Infinity also states that it took disciplinary action against Ms.
Moore and distributed a memo to all WBLK on air employees
reiterating its policy with respect to Section 73.1206. Infinity
then claims that, because this was an isolated incident and that
it has taken steps to remedy the situation, no further action is
warranted.
III. DISCUSSION
4. Section 73.1206 of the Commission's rules provides
that, before recording a telephone conversation for broadcast, or
broadcasting such a conversation simultaneously with its
occurrence, a licensee shall inform any party to the call of its
intention to broadcast the conversation, except where such party
is aware, or may be presumed to be aware from the circumstances
of the conversation, that it is being or likely will be
broadcast.4 The Commission has stated, ``we believe that there
is a legitimate expectation of privacy that telephone calls will
not be broadcast without the consent of the parties involved.''5
In this case, we find that Infinity apparently violated Section
73.1206 of the Commission's rules by recording and broadcasting
Ms. Tanner's conversation without giving her prior notice of its
intent to broadcast such conversation.
5. Section 503(b) of the Communications Act of 1934, as
amended (``Act''),6 and Section 1.80(a) of the Commission's
rules,7 each provide that any person who willfully or repeatedly
fails to comply with the provisions of the Act or the
Commission's rules shall be liable for a forfeiture penalty. For
purposes of Section 503(b) of the Act, the term ``willful'' means
that the violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's rules.8
6. Based on the evidence before us, we find that Infinity
broadcast a conversation on June 26, 2002, at approximately 9:30
p.m., in apparent willful violation of Section 73.1206 of the
Commission's rules. The Commission's Forfeiture Policy Statement
sets a base forfeiture of $4,000 for the unauthorized broadcast
of a telephone conversation.9 In assessing a monetary
forfeiture, we take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Act. Those factors include the
nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters
as justice may require. Infinity's claim that the matter here is
an isolated incident ignores another case in which the Commission
found that Infinity had violated Section 73.1206.10 Moreover,
Infinity's subsequent remedial efforts do not alter the fact that
the violation took place or justify further mitigation or
cancellation of the proposed forfeiture penalty.11 Based upon
these facts and considering all of the circumstances present
here, we find that no reduction or increase in the base
forfeiture amount is warranted and that $4,000 is the appropriate
forfeiture amount.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and Section
1.80 of the Commission's rules,12 Infinity Radio Operations,
Inc., is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violating Section 73.1206 of the Commission's rules, which
prohibits broadcasters from airing telephone conversations
without first informing the parties to such conversations of
their intention to do so.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's rules,13 within thirty days of this NOTICE OF
APPARENT LIABILITY, Infinity Radio Operations, Inc., SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment MUST INCLUDE
the FCC Registration number (FRN) referenced above and also must
note the NAL/Acct. No. referenced above.
10. The response, if any, must be mailed to Maureen F. Del
Duca, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. referenced above.
11. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the respondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the respondent's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
12. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Investigations and Hearings
Division, 445 12th, S.W., Room 3-B443, Washington, D.C. 20554.
Your certification should indicate whether you, including your
parent entity and its subsidiaries, meet one of the definitions
set forth in the list provided by the FCC's Office of
Communications Business Opportunities (OCBO) set forth in
Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.14
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Stephen A. Hildebrandt, Vice President, Infinity
Radio Operations, Inc., 14 Lafayette Square, Suite 1300, Buffalo,
New York 142203, with a copy to its counsel, attn: John D.
Poutasse, Leventhal, Senter & Lerman, P.L.L.C., 2000 K Street
N.W., Washington, D.C. 20006-1890.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. § 73.1206.
2 Letter from Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, to Infinity Radio
Operations, Inc., July 29, 2002.
3 Licensee states that the call occurred at ``approximately 9:00
p.m.,'' whereas Ms. Tanner states that it was ``about 9:30 p.m.''
4 47 C.F.R. § 73.1206.
5 In the Matter of Amendment of Section 1206: Broadcast of
Telephone Conversations, 3 FCC Rcd 5461, 5463 (1988).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80(a).
8 See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4387-
88 (1991).
9 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17100-01 (1997), recon. denied, 15
FCC Rcd 303 (1999).
10 See EZ Sacramento, Inc. and Infinity Broadcasting Corporation
of Washington, D.C., 16 FCC Rcd 4958 (2001); recon. denied, 16
FCC Rcd 15,605 (2001) (broadcast of a conversation while the
parties had been told they were on hold).
11 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
12 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
13 47 C.F.R. § 1.80.
14 See 47 C.F.R. § 1.1914.